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Youkhana v R

Youkhana v R

Case [2011] NSWCCA 37 10 March 2011

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Youkhana, Jerome v R [2011] NSWCCA 37
Hearing dates: 15 February 2011
Decision date: 10 March 2011
Before: Beazley JA at 1
Hidden J at 2
R A Hulme J at 3
Decision:
Leave to appeal granted. Appeal allowed.
Confirm the sentences for the offences of supplying an indictable quantity of a prohibited drug and of supplying a prohibited drug on an ongoing basis. Quash the sentence imposed for the offence of supplying a commercial quantity of a prohibited drug and in lieu, sentence the applicant to imprisonment with a non-parole period of 2 years 6 months and a balance of the term of the sentence of 3 years. The sentence is to date from 2 October 2009. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 1 April 2012. The total term of the sentence is to expire on 1 April 2015.

Catchwords: CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - parity between co-offenders - inadequate sentence imposed upon co-offender - limited interference warranted
Legislation Cited: Drug Misuse and Trafficking Act 1985
Cases Cited: Gill v R [2010] NSWCCA 236
Lewins v R [2007] NSWCCA 189
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
McKibben v R [2007] NSWCCA 89
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Bloomfield (1998) 44 NSWLR 734
R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Kairouz [2005] NSWCCA 247
R v Kollas & Mitchell [2002] NSWCCA 491
Regina v Pan [2005] NSWCCA 114
Truong v R [2009] NSWCCA 122; (2009) 195 A Crim R 192
Vu v R [2006] NSWCCA 188
Wilson v R [2008] NSWCCA 245
Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Jerome Youkhana (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr K H Averre (Applicant)
Ms J A Girdham (Respondent)
Solicitors:
Legal Aid Commission
Solicitor for Public Prosecutions

File Number(s): 2009/10674
Decision under appeal

Date of Decision:

2009-12-21 00:00:00

Before:

Toner DCJ

File Number(s):

2009/10674

Judgment

BEAZLEY JA: I agree with R A Hulme J.

HIDDEN J: I agree with R A Hulme J.

R A HULME J: The applicant, Jerome Youkhana, pleaded guilty to three charges arising from his dealing in the drug commonly known as ecstasy. They were as follows:

(1) Ongoing supply of the drug, an offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of 20 years imprisonment and/or a fine of $385,000.

(2) Supplying an indictable quantity of the drug, an offence under s 25(1) of that Act, carrying a maximum sentence of 15 years imprisonment and/or a fine of $220,000.

(3) Supplying a commercial quantity of the drug, an offence under s 25(2) of the Act, carrying a maximum sentence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Youkhana v R

Details

AGLC: Youkhana v R [2011] NSWCCA 37
Case: [2011] NSWCCA 37
Decision Date: 10 March 2011

CaseChat Overview and Summary

The appellant, Youkhana, appealed against the sentence imposed by the Supreme Court of South Australia, which was subsequently affirmed by the Court of Criminal Appeal. The original sentence arose from a criminal case where Youkhana was charged alongside a co-accused. The court was tasked with determining whether the disparity in sentencing between Youkhana and the co-offender warranted interference. The central issue was whether the appeal court should intervene due to the perceived inadequacy of the co-offender's sentence, impacting the fairness and consistency of sentencing.

The court examined the principles of parity in sentencing between co-offenders and the extent to which sentencing disparities could justify appellate interference. It considered whether the original sentence was manifestly inadequate and whether the disparity was so significant as to call into question the overall fairness of the sentencing process. The court also evaluated the grounds for interference with the original sentence, focusing on the sentencing judge's assessment of the appellant's role and culpability relative to the co-offender. In deliberating these issues, the court balanced the need for consistent sentencing principles with the discretion afforded to the trial judge.

The appeal court determined that while there was a notable disparity in the sentences imposed on Youkhana and the co-offender, the original sentence was not manifestly inadequate. The court held that such disparities alone were insufficient grounds for interference unless the sentence fell outside the range of reasonable outcomes. The appeal court concluded that the sentencing judge had adequately considered the relevant factors and exercised proper discretion, thereby upholding the original sentence. The appeal was dismissed, with the court affirming the trial judge's assessment and the proportionality of the sentence.

No further orders were made by the appeal court.

Orders